25 YEARS OF NATIVE TITLE RECOGNITION

Contents

Settlement and 1 disposession Bark Petitions 1963 2 The Freedom Ride 1965 2 walk off 3 1966–1975 Gove Land Rights case 4 1968–1971 4 1972 Yolgnu claimants in the Land Rights case over the discuss aspects of Racial Discrimination Act 5 the hearing outside the courtroom in , September 1970. Source: National Archives of . 1975 Reproduced with permission from Department of Foreign Affairs and Trade Aboriginal Land Rights (NT) 6 © Commonwealth of Australia. Act 1976 Noonkanbah 6 THE ROAD TO NATIVE TITLE: 1978–1980 THE LAND RIGHTS MOVEMENT Mabo No 2 6 1982–1992 Settlement and dispossession Redfern 7 From the time of first European settlement, Aboriginal and Torres Strait Islander Speech 1992 Australians have fought to maintain, and have recognised, their traditional rights to ownership of land. In 1788 the colony of New South Wales was established and the founding of Australia as a British colony had begun. The colony was settled on the basis of the doctrine of international law whereby the continent was deemed to be —land belonging to no-one. Despite the obvious presence of Indigenous people, in the eyes of the British the land was considered to be practically unoccupied, without settled inhabitants and without settled law. The Colony was claimed for the British Sovereign on 26 January 1788. There is ongoing debate about the legal status of the ‘settlement’ as the land was clearly occupied and; there was no treaty and no (declared) war. The concept of terra nullius was applied in later decisions of Australian courts though not explicitly stated. In the Gove Land Rights case (Milirrpum), Blackburn J held that at the time of Sovereignty the land was ‘practically unoccupied’. THE ROAD TO NATIVE TITLE: THE LAND RIGHTS MOVEMENT

The notion that Australia was ‘practically unoccupied’ The petitions affirm: at the time of its annexation, largely remained That the land in question has been hunting and unchallenged as the legal basis upon which Australia was settled by Europeans until 1992. In Mabo No 2, food gathering land for the Yirrkala from the High Court rejected the ‘enlarged notion of terra time immemorial; we were all born here. nullius’ which, though unstated, had underpinned land That places sacred to the Yirrkala people, as well law in Australia for over 200 years, and had justified as vital to their livelihood are in the excised land, the dispossession of Indigenous people from their especially Melville Bay. lands. The rejection of that notion cleared away the fictional impediment to common law recognition of That the people of this area fear that their needs Indigenous rights and interests in land and waters. and interests will be completely ignored as they have been ignored in the past, and they fear that the fate which has overtaken the Larrakeah Increasing activism: Some significant will overtake them. events of the land rights movement In response to these representations from the People, a bipartisan Parliamentary Committee of Prior to the Mabo decision, the 1960s saw increasing Inquiry was established. In its report, the Committee activism by for recognition of acknowledged the rights of the Yolngu People as set their land rights and civil rights. This occurred against out in the petitions and recommended the payment the backdrop of civil rights movements globally, in of compensation, protection for sacred sites and India and South Africa and, perhaps most significantly, monitoring of the mining project by an ongoing in the United States of America. These movements parliamentary committee. saw growing international and domestic awareness of the injustice and iniquities of segregation and race The are significant as based laws and policies. they marked a bridge between two traditions of law—Commonwealth law as it then stood, and the Indigenous laws of the land. They were the first traditional documents recognised by Yirrkala Bark Petitions 1963 the Commonwealth Parliament, and are the first documentary recognition of Indigenous people in Australian law. Though the recommendations of the Committee were not implemented and the Yirrkala bark petitions did not achieve the constitutional change sought, they did pave the way for eventual legal recognition of Indigenous rights in Australia.

The Freedom Ride 1965 [T]he Freedom Ride is a copy of what happened in Yirrkala Bark Petitions, 1963. Source: Courtesy of AIATSIS, America, where people wanted to go out, get in a AIATSIS Collection, item AIAS.049.CN-N00004_02 bus, go out there and go to towns and cities and expose discrimination and prejudice wherever it In 1963 the Yolgnu People of Yirrkala presented two may be. And racism. And that’s what we wanted petitions to Federal Parliament in protest against the to do, all of us students. And we thought, well sale of part of the Arnhem Aboriginal Land Reserve to we’ll go into the country towns of New South a bauxite mining company without any consultation with the traditional owners. The painted bark Wales. petitions, written in both Yolngu Matha and English, Charles Perkins described the Yolngu People’s traditional connection to the Gove Peninsula in north eastern in In 1965, 29 University students embarked on the . the Freedom Ride led by Charles Perkins, an Arrernte man and third year Arts student. The Freedom

2 │ Title 2 │ The road to native title: The land rights movement Ride was a bus tour of regional New South Wales The song tells the uplifting story of the Gurindji (NSW) aimed at opposing racial discrimination and people’s struggle for equality and land rights in the exposing mistreatment of Aboriginal Australians. In 1960s and 1970s. small country towns in NSW, Aboriginal people were barred from swimming pools, RSL clubs and cafes and often refused service at shops and bars. They endured segregation at schools, limited employment opportunities and were also forbidden to live in towns, being forced into reserves and missions on the edge of rural population centres. The Freedom Ride brought the issues of racism and racial discrimination to national attention.

Watch: and Paul Kelly perform "From Little Things Big Things Grow" On this great day, I, Prime Minister of Australia, speak to you on behalf of all Australian people – all those who honour and love this land we live in. For them I want to say to you: I want this to acknowledge that we Australians have still much to do to redress the injustice and oppression that has for so long been the lot of Black Australians. , I solemnly hand to you these deeds as proof, in Australian law, that these lands belong to the and I put into Charles Perkins talking to a group of Aboriginal people outside a house. Source: Mitchell Library, State Library of your hands part of the earth itself as a sign that New South Wales © Tribune/SEARCH Foundation this land will be the possession of you and your children forever. Wave Hill Station walk off , Prime Minister, 1975 1966–1975 In 1966, Vincent Lingiari led 200 Gurindji stockmen and their families in a walk off from Wave Hill Station in the Northern Territory. The strike was in protest against poor work and pay conditions. Significantly, it was also a protest about the appropriation of traditional Gurindji lands for the creation of pastoral properties. For nine years the Gurindji resided at Daguragu (Wattie Creek), until 1975 when Prime Minister Gough Whitlam ceremonially handed back a portion of the Gurindji traditional lands to the Gurindji People. This demonstration of resistance and resilience is an important achievement in the history of the struggle of Aboriginal Australians for recognition of their rights to, and responsibility for, land. We want to live on our land, our way. Vincent Lingiari

The Gurindji walk off contributed to the growing Prime Minister Gough Whitlam pours soil into the hands of pressure on government to address the question of traditional land owner Vincent Lingiari, Northern Territory, land rights. 1975. Source: /Art Gallery of New South Wales. Reproduced with permission from From Little Things Big Things Growis the well-known Department of the Prime Minister and Cabinet song by Australian artists, Paul Kelly and Kev Carmody. © Commonwealth of Australia

The road to native title: The land rights movement│ 3 Gove Land Rights case obligatory by a definable community which made ritual and economic use of the areas claimed. 1968–1971 (Milirrpum v Nabalco Pty Ltd (1971) In 1968, after the recommendations of the 17 FLR 141 [4]) Parliamentary Committee inquiry conducted in The Gove Land Rights case created wider public response to the Yirrkala bark petitions were not awareness of the claim of the Yolgnu and the legal implemented, the Yolngu People from Yirrkala in problems of Indigenous people throughout Australia. north-east Arnhem Land took their case to the Campaigns to change the law to provide just answers Northern Territory Supreme Court. This was the first for Indigenous people increased. Another important litigation in Australia on native title. step towards native title had been taken.

Aboriginal Tent Embassy 1972 After the decision in the Gove Land Rights case, Indigenous people travelled to Canberra to ask the Prime Minister of the time, William McMahon, to give them title to their land and to protect their interests, particularly in relation to mining. On the eve of in January 1972, the Prime Minister issued a press statement which included the rejection of land rights in favour of 50 year leases to Aboriginal Communities. The Prime Minister made specific reference to the Yirrkala people’s opposition to the mining venture on their traditional land, stating that the mine at Gove was ‘in the national interest’.

Yolgnu claimants in the Land Rights case over the Gove Peninsula containing bauxite deposits discuss aspects of the hearing outside the courtroom in Canberra, September 1970. Source: National Archives of Australia. Reproduced with permission from Department of Foreign Affairs and Trade © Commonwealth of Australia.

The Yolgnu People challenged the validity of mining leases granted over their traditional lands on the basis that their rights to land held under traditional law and custom had survived the acquisition of sovereignty, Setting up of the Aboriginal Tent Embassy, Australia Day, unless validly terminated by the Crown. (L-R) Michael Anderson, Billie Craigie, Bert Williams and Tony Coorey under a beach umbrella, 1972. In 1971, Justice Blackburn dismissed the action on Source: Mitchell Library, State Library of New South Wales the basis that the doctrine of communal title did not © Tribune/SEARCH Foundation form part of Australian law, and if it did, that title was extinguished by opening the land to grant to colonial In protest against this statement, on Australia Day settlers. This latter conclusion relied on a series of 1972, Michael Anderson, Billy Craigie, Bertie Williams earlier cases which reinforced the notion of Australia and Tony Coorey placed a beach umbrella with an being ‘practically unoccupied’ in 1788. ‘Aboriginal Embassy’ sign on the lawns of Parliament Justice Blackburn did find that there existed a ‘subtle House and the Tent Embassy was created. and elaborate’ system of Aboriginal law. Over the years the Aboriginal Tent Embassy has A system of social rules and customs which was become an enduring sign of Aboriginal resistance and a focal point for protests and marches. highly adapted to the country in which the people lived and which provided a stable order of society remarkably free from the vagaries of personal whim or influence. The system was recognised as

4 │4 The│ Title road to native title: The land rights movement my father and his father lived under since my grandfather was removed to the mission as a boy and to which I was subject [for] the first 10 years of my life.

Powers regulating residency on reserves without a permit, the power of reserve managers to enter private premises without the consent of the householder, legal representation and appeal from court decisions, the power of reserve managers to arbitrarily direct people to work, and the terms and conditions of employment, were March to protest police action against the now required to treat Aboriginal Queenslanders Tent Embassy, 1972. on the same footing as other Australians. Source: Mitchell Library, State Library of New South Wales © Tribune/SEARCH Foundation We were at last free from those discriminations that humiliated and degraded our people.

The companion to this enactment, which would Racial Discrimination Act 1975 form the architecture of indigenous human rights In 1975 the Whitlam Government introduced the akin to the Civil Rights Act 1965 in the United Racial Discrimination Bill. The Bill was passed in States, was the Racial Discrimination Act. Parliament and the Act came into effect in June 1975. It was in Queensland under Bjelke-Petersen that its importance became clear. The Act was ground-breaking. It was the law that secured for all Australians, whatever their racial In 1976, a Wik man from Aurukun on the western background, equality before the law. Cape York Peninsula, John Koowarta, sought to Tim Soutphommasane, Race Discrimination purchase the Archer Bend pastoral lease from its Commission white owner.

The Queensland government refused the sale. The The Racial Discrimination Act was a turning point in High Court’s decision in Koowarta versus Bjelke- Australia, making unlawful any discrimination against Petersen upheld the Racial Discrimination Act as a people on the basis of their race, colour, descent, or valid exercise of the external affairs powers of the national or ethnic origin. It has proven to be much more Commonwealth. than a statement of good intentions.

The High Court used the law to strike down state However, in an act of spite, the Queensland legislation. Most famously, it cleared the way for the Government converted the lease into the recognition of native title in the Mabo case in 1992. Acher Bend National Park. Queensland had sought to prevent that result by enacting legislation to pre-emptively extinguish native Old man Koowarta died a broken man, the winner title. However, in Mabo No 1, the High Court found of a landmark High Court precedent but the victim that the Queensland law conferred lesser property of an appalling discrimination. rights on Aboriginal peoples, and so struck it down as being inconsistent with the Racial Discrimination Act. The Racial Discrimination Act was again crucial As a result, Mabo No 2 was able to proceed. in 1982 when a group of Murray Islanders led by Eddie Mabo claimed title under the common law to their traditional homelands in the Torres Strait. In June 1975, the Whitlam government enacted the Aboriginal and In 1985 Bjelke-Petersen sought to kill the Murray Queensland Discriminatory Laws Act. Islanders’ case by enacting a retrospective extinguishment of any such title. The law put to purpose the power conferred upon the Commonwealth Parliament by the 1967 There was no political or media uproar against referendum, finally outlawing the discrimination Bjelke-Petersen’s law. There was no public

The road to native title: The land rights movement│ 5 condemnation of the state’s manoeuvre. There Noonkanbah was no redress anywhere in the democratic forums or procedures of the state or the nation. Beginning in 1978, a dispute over drilling on sacred sites on Noonkanbah station in the Kimberley region If there were no Racial Discrimination Act that of drew national and international attention to Indigenous rights. would have been the end of it. Land rights would have been dead, there would never have been a The late 1970s saw extensive resource exploration Mabo case in 1992, there would have been no in the Kimberley. Amax Iron Ore Corporation was Native Title Act under Prime Minister Keating in conducting an oil exploration program that included 1993. the proposed drilling of an exploration well near Pea Hill or Umpampurru on Noonkanbah station. This , Eulogy for Gough Whitlam 2014 area was part of a site complex ‘significant in both a religious and economic context’ to the Yungnora People. The Yungnora People strongly opposed drilling Aboriginal Land Rights (Northern which would impact the significant Pea Hill site, and Territory) Act 1976 undertook various legal actions and petitioned the Western Australian Parliament in 1979. The Premier of The Aboriginal Land Rights Commission, also known Western Australia, Sir Charles Court, was adamant that as the Woodward Royal Commission, was established drilling proceed and when re-elected in February 1980, in 1973 in response to the Gove Land Rights decision. renewed his government’s commitment. Its task was to inquire into appropriate ways to recognise Aboriginal land rights in the Northern The Yungnora and the Western Territory. The recommendations of the Commission in failed to reach agreement and, in August 1980, a its 1974 report led to the handing over of land to the convoy of trucks carrying drilling equipment left Gurindji People in 1975. Perth with a police escort, bound for Noonkanbah. The convoy was met by protesters along its route and, together with union action in support of the Yungnora people, there was a short reprieve. However, these actions ultimately failed and drilling began on 30 August 1980. The drilling did not result in the discovery of any commercial reserves of oil. Although the ‘battle’ of Noonkanbah was one that the protestors lost, its aftermath is considered a significant turning point in the land rights movement. It led to the first delegation of to address the United Nations Human Rights Sub-Commission on the Prevention of Discrimination and Protection of Minorities, and was the catalyst for the establishment of the Kimberley bringing Kimberley Aboriginal people together as ‘one mob, with one Mr Justice Woodward at an Aboriginal Land Rights voice’. hearing at Yirrkala. Also in the picture are In a legal sense, Noonkanbah highlighted the Frank Purcell and . Unknown. vulnerability of Indigenous rights and the weakness Source: Northern Territory Library, ABC.T.V. of remedies then available to protect Indigenous The Aboriginal Land Rights (Northern Territory) Act interests in land. The failure of statute to protect these 1976 was largely the product of the recommendations interests was a key factor in the commencement of the of the 1974 Woodward report. The legislation allowed Mabo litigation seeking common law recognition of Aboriginal people in the Northern Territory to make native title. claims on land to which they could prove traditional ties. Importantly, the statute is the first attempt by an Australian government to legally recognise the Mabo No 2 1982–1992 Aboriginal system of land ownership and put into law In 1982 Meriam People brought an action against the concept of inalienable freehold title. the State of Queensland and the Commonwealth of Australia, in the High Court, claiming ‘native title’ to the Murray Islands. On 3 June 1992, after 10 years of litigation, the High Court upheld the claim and ruled that the lands of this

6 │ Title 6 │ The road to native title: The land rights movement continent were not terra nullius or ‘land belonging to no-one’ when European settlement occurred, and that the Meriam people were ‘entitled as against the whole world to possession, occupation, use and enjoyment of (most of) the lands of the Murray Islands’. With these words, the doctrine of native title was inserted into Australian law.

Paul Keating Redfern speech 1992 Six months after the Mabo decision, Prime Minister Paul Keating gave a speech in Redfern Park to mark the coming International Year of the World’s Indigenous Watch: Prime Minister Paul Keating People. The speech is celebrated as historically Launch of International Year of the World's significant. It is the first time an Australian political Indigenous Peoples, 1993 leader had publicly acknowledged the impact of European settlement, and colonial and contemporary [It was] a great speech because it was about government policies, on Indigenous Australians. leadership, principle and courage... He placed before Australians the truths of our past and the It begins, I think, with that act of recognition. sad reality of our contemporary society. He laid down the challenge for our future, as a nation Recognition that it was we who did the united and at peace with its soul. dispossessing. Patrick Dodson, 2007 We took the traditional lands and smashed the traditional way of life. We brought the diseases. The alcohol. We committed the murders. The The Commonwealth’s legislative response to Mabo We took the children from their mothers. No 2, the Native Title Act, was passed in 1993 and We practised discrimination and exclusion. commenced operation on 1 January 1994. It is a legislative framework which recognises and protects It was our ignorance and our prejudice. native title, and deals with past and future implications And our failure to imagine these things being done of Mabo No 2. to us. With some noble exceptions, we failed to make the most basic human response and enter into their hearts and minds. We failed to ask - how would I feel if this were done to me? As a consequence, we failed to see that what we were doing degraded all of us. Paul Keating,Redfern Speech, 1992 Watch: Mr Greg McIntyre, Barrister for Eddie Mabo 1981-1992

The road to native title: The land rights movement│ 7 References National Museum of Australia, Yirrkala, 1963-71 AIATSIS, Land Rights National Museum of Australia, Freedom Ride, 1965 T Egan, Australian Dictionary of Biography,Vincent N Pearson, ‘Noel Pearson’s eulogy for Gough Whitlam Lingiari (1919-1988) in full’, The Sydney Morning Herald (online), 5 November 2014 M Hodgson, ‘Lingiari’s legacy: from little things big things grow’, ABC News (online), 26 August 2011 T Soutphommasane, ‘A Brave Piece of Legislation’: The Racial Discrimination Act, Indigenous Law Centre, Native Title Timeline 40 years on, ABC Religion and Ethics (online), Museum of Australian Democracy, Yirrkala bark 23 February 2015 petitions 1963 (Cth) David Ritter (2002)The fulcrum of Noonkanbah, National Archives of Australia, The Wave Hill ‘Walk Off’ Journal of Australian Studies, 26:75, 51-58 National Museum of Australia, The Struggle for Land Rights

For more information about native title and services of the Tribunal please contact: National Native Title Tribunal GPO Box 9973 in your capital city Freecall 1800 640 501 www.nntt.gov.au Published by the National Native Title Tribunal © Commonwealth of Australia, 2017. ISBN: 978-0-9807613-0-6 This fact 88 ││ TitleThe sheet road is provided to native as general title: information the land andrights should movement not be relied upon as legal advice for a particular matter.